S v Secretary of State for the Home Department

Where an appellate tribunal identifies a material error of law and undertakes reconsideration itself, it is arguable that procedural fairness requires the parties to be heard on the outcome before a merits decision is made. Moving directly to dismissal without submissions may amount to a material procedural breach. Permission was granted to pursue that issue, but the Court of Appeal did not determine the Article 8 merits or the test referred to in Huang.

The appellants, Tanzanian citizens aged 70 and 57, entered the United Kingdom as visitors and applied for indefinite leave to remain as dependent relatives of their settled daughter under Rule 317 of Immigration Rules. The Secretary of State refused the application after delay in issuing the explanatory statement.

An immigration judge allowed the Article 8 appeal, taking account of the older appellant’s brain tumour, family support, circumstances in Tanzania and financial resources. On reconsideration, the Asylum and Immigration Tribunal found a material error of law, reconsidered the case itself and dismissed the appeal without hearing submissions on the outcome. The central issue was whether that procedure provided reasonable grounds for an appeal.

Permission to appeal granted. The Court of Appeal considered a renewed application for permission, not the final merits of the Article 8 claim. It did not finally determine whether the Asylum and Immigration Tribunal had committed a procedural breach or whether removal would be disproportionate.

1. The immigration judge had reached a conclusion in the appellants’ favour after applying the approach referred to in Huang. The Tribunal found a material error because the test had not been properly applied to the facts. It also referred to the absence of findings concerning insurmountable obstacles.
2. After finding an error of law, the Tribunal proceeded to reconsider the appeal itself. It moved directly to its merits conclusion and dismissal, relying on the up-to-date medical evidence, without hearing arguments on what the result of reconsideration should be. The Court of Appeal held, with some hesitation, that this gave reasonable grounds for pursuing whether the procedure involved a material breach of appropriate procedure.
3. The proposed appeal could require consideration of the Secretary of State’s policy concerning removal of dependent relatives aged 65 or over, the delay before the explanatory statement was issued, and the appellants’ updated medical and financial circumstances. These matters were left for the substantive appeal.

The Court recognised contemporary uncertainty about AIT procedure after the former distinction between the IAT’s appellate function and an adjudicator’s original fact-finding function had been removed. The appeal was estimated to require three hours. A High Court judge could sit, but the constitution had to include at least one Lord Justice with asylum expertise.

• Court of Appeal (Civil Division), [2006] EWCA Civ 695: granted permission on the renewed application, allowing the appellants to pursue the procedural challenge.
• Asylum and Immigration Tribunal, AIT No TH/01917/2005, 5 December 2005: found a material error of law in the immigration judge’s determination, conducted the reconsideration itself and dismissed the appeal.
• Immigration judge, 26 August 2005: allowed the Article 8 appeal after considering the appellants’ health, support, circumstances in Tanzania and financial position.